Citation Nr: 0605195
Decision Date: 02/23/06 Archive Date: 03/01/06
DOCKET NO. 05-22 472 ) DATE
)
)
On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in
St. Louis, Missouri
THE ISSUE
Whether new and material evidence has been received to reopen
a claim of entitlement to service connection for a low back
disability.
REPRESENTATION
Veteran represented by: Missouri Veterans Commission
ATTORNEY FOR THE BOARD
Debbie A. Riffe, Counsel
INTRODUCTION
The veteran served on active duty from March 1953 to March
1954.
This case comes to the Board of Veterans' Appeals (Board) on
appeal from an October 2004 RO decision, which determined
that new and material evidence had not been received to
reopen a claim of entitlement to service connection for a low
back disability.
FINDINGS OF FACT
1. VA notified the veteran of the evidence needed to
substantiate the claim decided herein, explained to him who
was responsible for submitting such evidence, and obtained
and fully developed all other evidence necessary for an
equitable disposition of the claim.
2. In an unappealed September 1954 rating decision, the RO
denied the veteran's claim of entitlement to service
connection for a low back disability; the evidence received
since the September 1954 RO decision includes evidence that
is cumulative or redundant of evidence previously considered
and does not, by itself or when considered with previous
evidence, relate to an unestablished fact necessary to
substantiate the claim and raise a reasonable possibility of
substantiating the claim.
CONCLUSION OF LAW
New and material evidence has not been submitted to reopen
the claim of entitlement to service connection for a low back
disability; and the September 1954 RO decision is final. 38
U.S.C. § 709 (1952); 38 U.S.C.A. §§ 5108, 7105(c)
(West 2002); Veterans Regulation No. 2(a), Part II, Par. III;
Department of Veterans Affairs Regulation 1008; 38 C.F.R.
§§ 3.104, 3.156, 20.302, 20.1103 (2005).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
I. VA's Duties to Notify and Assist
The Veterans Claims Assistance Act of 2000 (VCAA), codified
at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126
(West 2002), eliminated the concept of a well-grounded claim
and redefined the obligations of VA with respect to its
duties to notify and to assist a claimant. In August 2001,
VA issued regulations to implement the VCAA. 66 Fed. Reg.
45,620 (Aug. 29, 2001), codified at 38 C.F.R. §§ 3.102,
3.156(a), 3.159 and 3.326(a) (2005). The Board will assume
for the purposes of this decision that the liberalizing
provisions of the VCAA are applicable to the veteran's claim
to reopen. However, nothing in the Act shall be construed to
require the Secretary to reopen a claim that has been
disallowed except when new and material evidence is presented
or secured, as described in 38 U.S.C.A. § 5108. 38 U.S.C. §
5103A(f).
The VCAA and its implementing regulations provide that VA
will assist a claimant in obtaining evidence necessary to
substantiate a claim, but VA is not required to provide
assistance to a claimant if there is no reasonable
possibility that such assistance would aid in substantiating
the claim. VA must also notify the claimant and the
claimant's representative, if any, of any information, and
any medical or lay evidence, not previously provided to the
Secretary that is necessary to substantiate the claim. As
part of the notice, VA is to specifically inform the claimant
and the claimant's representative, if any, of which portion,
if any, of the evidence is to be provided by the claimant and
which part, if any, VA will attempt to obtain on behalf of
the claimant.
The United States Court of Appeals for Veterans Claims
(Court) has mandated that VA ensure strict compliance with
the provisions of the VCAA. See Quartuccio v. Principi, 16
Vet. App. 183 (2002). For the reasons noted below, the Board
finds that VA has complied with the notification and
assistance provisions of the VCAA such that the Board's
decision to proceed in adjudicating this claim does not
prejudice the veteran in the disposition thereof. See
Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993).
A. Duty to Notify
The Court has indicated that notice under the VCAA should
contain the following four elements: (1) notice of the
information and evidence not of record that is necessary to
substantiate the claim; (2) notice of the information and
evidence that VA will seek to provide; (3) notice of the
information and evidence the claimant is expected to provide;
and, (4) a request to the claimant to provide VA with all
relevant evidence and argument pertinent to the claim at
issue. See Pelegrini v. Principi, 18 Vet. App. 112 (2004)
(Pelegrini II).
Relevant to the duty to notify, the Court has also indicated
that notice under the VCAA must be given prior to an initial
unfavorable decision by the agency of original jurisdiction
(RO). See Pelegrini v. Principi, 18 Vet. App. 112 (2004)
(Pelegrini II). In Pelegrini II, the Court clarified that
VA's regulations implementing amended section 5103(a) apply
to cases pending before VA on November 9, 2000, even if the
RO decision was issued before that date, and that, where
notice was not mandated at the time of the initial RO
decision, it was not ipso facto error to provide remedial
notice after such initial decision. See Pelegrini,
18 Vet. App. at 115, 119-120.
In the instant case, VCAA notice was sent to the veteran
prior to the RO decision in October 2004, and, as explained
herein below, complied with the requirements of the VCAA as
interpreted by the Court in Pelegrini II.
The veteran was apprised of the VCAA and its impact on his
claim by letter dated in July 2004. In the letter, the RO
advised him of what was required to prevail on his
application to reopen a claim of service connection for a low
back disability (e.g., new and material evidence, and how
those terms are defined), what specifically VA had done and
would do to assist in the claim, and what information and
evidence the veteran was expected to furnish. The RO
specifically informed the veteran that VA would assist him in
obtaining records from private and Federal government
facilities such as VA, if properly identified, but that the
veteran had to provide both identifying information and a
signed release for VA to obtain private records on his
behalf. The RO also requested the veteran to send it any
evidence in his possession that pertained to his claim.
Further, the veteran was provided with a copy of the rating
decision dated in October 2004 setting forth the requirements
for reopening previously denied claims for service
connection, and was advised as to the nature of the evidence
necessary to substantiate his claim to reopen. The
advisements were reiterated in the statement of the case
issued in June 2005, which also contained 38 C.F.R. § 3.159
and the United States Codes cites relevant to the VCAA.
Further, the statement of the case provided the veteran
opportunity to identify or submit any evidence he wished to
be considered in connection with his appeal. Thus, through
the aforementioned documents mailed to the veteran, the RO
informed the veteran of the information and evidence needed
to substantiate his claim. See 38 U.S.C.A. §§ 5102, 5103.
In short, the veteran has been notified of the information or
evidence necessary to substantiate his claim and the parties
responsible for obtaining that evidence. All the VCAA
requires is that the duty to notify is satisfied, and that
claimants be given the opportunity to submit information and
evidence in support of their claim. Once this has been
accomplished, all due process concerns have been satisfied.
See Bernard v. Brown, 4 Vet. App. 384 (1993); Sutton v.
Brown, 9 Vet. App. 553 (1996); see also 38 C.F.R. § 20.1102
(2003) (harmless error). In this case, based on the
information the RO has provided to the veteran, as referenced
above, VA has essentially satisfied its obligation to notify.
B. Duty to Assist
VA has amended its regulations to establish clear guidelines
consistent with the intent of Congress regarding the timing
and the scope of assistance VA will provide to a claimant who
files a substantially complete application for VA benefits or
who attempts to reopen a previously denied claim.
66 Fed. Reg. 45,620, 45,630-32 (August 29, 2001) (codified at
38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326 (2005)).
Although the rule is generally effective on November 9, 2000,
the amended definition of new and material evidence, codified
at 38 C.F.R. § 3.156(a), is not liberalizing. It applies to
any claim to reopen a finally decided claim received on or
after August 29, 2001. 66 Fed. Reg. 45,620, 45,629. It thus
applies to the veteran's claim to reopen, which was received
in June 2004.
The second sentence of 38 C.F.R. § 3.159(c), and 38 C.F.R. §
3.159(c)(4)(iii), which relate to the assistance VA will
provide to a claimant attempting to reopen a finally decided
claim, provide rights in addition to those provided by the
VCAA. The authority to provide such additional assistance is
provided by 38 U.S.C. § 5103A(g), which provides that nothing
in § 5103A shall be construed to preclude VA from providing
such other assistance to a claimant in substantiating a claim
as VA considers appropriate. Because VA has no authority to
make these provisions retroactively effective, they are
applicable on the date of the rule's final publication,
August 29, 2001. 66 Fed. Reg. 45,620, 45,629. Thus, they
are applicable to the veteran's claim to reopen, which was
received in June 2004.
VA has made reasonable efforts to identify and obtain
relevant records in support of the veteran's claim. The
veteran maintains that he is entitled to service connection
for a low back disability. He was afforded the opportunity
to testify at a personal hearing, but he declined. The RO
has previously obtained the veteran's service medical
records. The veteran has not identified any VA treatment
records for the RO to obtain on his behalf. The RO has
obtained medical treatment records from a private doctor
(E.S., M.D.), which were identified by the veteran. The RO
sought treatment records from a chiropractor (Grimm
Southside), also identified by the veteran, but the
chiropractor responded that they did not treat the veteran
when he said he was treated (thus, no records were obtained).
The veteran was notified of this in the statement of the case
issued to him in June 2005. Neither the veteran nor his
representative has identified any additional evidence or
information that could be obtained to substantiate the claim.
The Board notes that VA's duties under the VCAA do not
mandate obtaining a medical examination or opinion prior to a
claim having been reopened. Accordingly, the Board is
satisfied that insofar as such are applicable to the
veteran's claim to reopen, the RO has complied with the duty
to assist requirements of the VCAA and the implementing
regulations.
Under the facts of this case, "the record has been fully
developed," and "it is difficult to discern what additional
guidance VA could have provided to the veteran regarding what
further evidence he should submit to substantiate his
claim." Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004);
see also Livesay v. Principi, 15 Vet. App. 165, 178 (2001)
(en banc) (observing that the VCAA "is a reason to remand
many, many claims, but it is not an excuse to remand all
claims."); Reyes v. Brown, 7 Vet. App. 113, 116 (1994);
Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (both
observing circumstances as to when a remand would not result
in any significant benefit to the claimant); Bernard v.
Brown, 4 Vet. App. 384, 393-94 (1993) (holding that when the
Board addresses in its decision a question that has not been
addressed by the RO, it must consider whether the appellant
has been given adequate notice to respond and, if not,
whether he has been prejudiced thereby). The Board thus
finds that VA has done everything reasonably possible to
notify and assist the veteran and that the record is ready
for appellate review.
II. New and Material Evidence to Reopen Claim
Service connection may be granted for disability resulting
from disease or injury incurred in or aggravated by service.
38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Notwithstanding the
above, service connection may be granted for disability shown
after service, when all of the evidence, including that
pertinent to service, shows that it was incurred in service.
38 C.F.R. § 3.303(d); Cosman v. Principi, 3 Vet. App. 303,
305 (1992).
Generally, a claim that has been previously denied may not
thereafter be reopened and allowed. 38 U.S.C.A. §§ 7104,
7105. The exception to this rule is 38 U.S.C.A. § 5108,
which provides that if new and material evidence is presented
or secured with respect to a claim which has been disallowed,
the Secretary shall reopen the claim and review the former
disposition of the claim.
"New evidence" means existing evidence not previously
submitted to agency decisionmakers; "material evidence"
means existing evidence that, by itself or when considered
with previous evidence of record, relates to an unestablished
fact necessary to substantiate the claim. "New and material
evidence" can be neither cumulative nor redundant of the
evidence of record at the time of the last prior final denial
of the claim sought to be reopened, and must raise a
reasonable possibility of substantiating the claim. 38
C.F.R. § 3.156(a); see also Hodge v. West, 155 F.3d 1356
(Fed. Cir. 1998).
For the purpose of establishing whether new and material
evidence has been submitted, the credibility of the evidence,
although not its weight, is to be presumed. Justus v.
Principi, 3 Vet. App. 510, 513 (1992). In Kutscherousky v.
West, 12 Vet. App. 369 (1999) the Court held that the prior
holdings in Justus and Evans v. Brown, 9 Vet. App. 273 (1996)
- that the credibility of the evidence is to be presumed -
was not altered by the Federal Circuit decision in Hodge.
In the present case, the RO in rating decisions of May 1954
and September 1954 denied service connection for a low back
disability. In letters dated in May 1954 and September 1954,
the RO informed the veteran of its respective determinations
and of his rights to appeal. As the veteran did not appeal
the RO's rating decisions, they are considered final, with
the exception that the claim may be reopened if new and
material evidence is received. 38 U.S.C. § 709 (1952); 38
U.S.C.A. §§ 5108, 7105(c) (West 2002); Veterans Regulation
No. 2(a), Part II, Par. III; Department of Veterans Affairs
Regulation 1008; 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103
(2005).
The last final disallowance of the veteran's claim in this
case is the September 1954 RO rating decision. As such, the
Board will consider evidence submitted since this
determination in order to ascertain whether that evidence is
new and material to reopen the veteran's claim of service
connection for a low back disability.
When the RO in September 1954 denied the claim of service
connection for a low back disability, it had considered the
veteran's service medical and personnel records, and
statements of the veteran. In his original application for
disability compensation, the veteran indicated that the onset
of the intervertebral disc condition was in 1949 and that he
received treatment for his back at three different times
during his period of service. The service personnel records
show that the veteran served on active duty from March 1953
to March 1954. The service medical records show that on a
November 1952 induction physical examination, the veteran's
spine was evaluated as normal with the exception of findings
from X-rays taken at that time, given that the veteran had
had an operation (in February 1952, as later notations would
indicate) for a ruptured intervertebral disc, between the 4th
and 5th lumbar on the right side. The X-rays showed evidence
of Schmorl's nodes on the 6th through 11th thoracic and 1st and
2nd lumbar vertebrae, and a minimal amount of narrowing
between L5 and S1. Otherwise, the veteran was found fit for
military service. In September 1953, the veteran had low
back pain and was diagnosed with herniation of nucleus
pulposus, at L4, cause undetermined, recurrent. He was
transferred for further observation and treatment to an Army
hospital in Germany, where the diagnosis was changed to
bilateral defect of pars interarticularis of L5, existing
prior to service. In January 1954, the veteran was
transferred Stateside, with the diagnosis of bilateral defect
of pars interarticularis of L5 with S1 root irritation. In a
report dated in January 1954, the veteran reported that back
pain recurred during basic training (ascribed to a fall) and
after his unit was assigned to France in August 1953 with the
moving of machinery.
On a medical board physical examination in February 1954, the
veteran's spine was evaluated as abnormal, with a notation
that he was physically disqualified by virtue of a previous
laminectomy and spondylolisthesis, existing prior to service.
(A medical survey board report indicates, however, that the
veteran's diagnosis was spondylolysis with S1 root
irritation, not apparently aggravated.) A physical
examination for discharge purposes in March 1954 indicated
that the veteran's spine was normal, except for a surgical
scar in the lower part of the back.
The evidence received since the September 1954 RO decision
consists of VA outpatient treatment records, private medical
records dated from 2002 to 2004, and statements of the
veteran. In various statements, the veteran contends that
during his period of active service he injured his back while
stationed in Europe and was treated at the US Army Hospital
in Germany. He argues that while he injured his back and had
surgery prior to entering service, he re-injured his back and
aggravated the pre-existing condition during service. The VA
medical records do not show any treatment for a low back
disability. The private medical records from the veteran's
private physician, E.S., M.D., show a back injection in
February 2004 and notations of lumbosacral spine
radiculopathy in March 2004 and July 2004.
In regard to the evidence submitted since the September 1954
RO decision, the Board finds that to the extent that it was
not in existence at the time of the previous RO decision it
constitutes new evidence. Therefore, the private medical
records showing treatment of a low back disability are
"new" because none of these records was associated with the
file for consideration by the RO in September 1954 and
because they were not even obtainable in 1954.
Notwithstanding such evidence being considered "new," the
Board finds that the additional evidence is not "material"
as it does not relate to the unestablished fact necessary to
substantiate the claim and raise a reasonable possibility of
substantiating the claim, as required under 38 C.F.R. §
3.156.
In this case, the required "unestablished fact" in regard
to a low back disability consists of medical evidence that
the veteran's current low back disability either had its
onset or was aggravated during his period of service. In
other words, a medical link between the current disability
and disability documented in service.
The additional (private) medical records show diagnosis of
lumbosacral spine radiculopathy in 2004 and treatment for the
disability at that time. There is no medical evidence
probative of the issue of whether the veteran's current low
back disability is related either to certain symptom
complaints and treatment during active service or to a low
back condition that was aggravated during service. At the
time of the September 1954 decision, there was no medical
evidence that his pre-existing low back disability had been
aggravated during service. The medical evidence added to the
file since September 1954 still does not relate to this
necessary element in order to reopen the claim. The new
evidence added to the file since September 1954 shows current
treatment of a low back disability, but there is no showing
that the current condition relates to service or to
aggravation of a low back condition during service. There is
a gap of many years between service and the current records
of treatment for a low back disability. Thus, when
considered with the previous evidence, the new evidence
relevant to the treatment of the back condition in issue is
in essence cumulative or redundant of the evidence of record
at the time of the last prior final denial of the claim in
September 1954. In short, it is the Board's opinion that the
new evidence does not raise a reasonable possibility of
substantiating the veteran's claim.
Since the September 1954 RO decision, the veteran has
submitted additional written statements specifically relating
his current low back disability to re-injuries and treatment
during service. He argues that his low back disability was
aggravated during service. His statements are presumed
credible, and, to the extent not cumulative and redundant of
assertions and theories already raised, are considered new
evidence. Nevertheless, his assertions that his current low
back disability is related to aggravation of a pre-existing
low back disability during his period of service are not
material evidence because he is a layman and thus has no
competence to give a medical opinion on diagnosis or
etiology. Espiritu v. Derwinski, 2 Vet. App. 492 (1992).
In sum, none of the evidence submitted since the September
1954 RO decision is both new and material. 38 C.F.R.
§ 3.156. Thus, the claim of entitlement to service
connection for a low back disability has not been reopened,
and the September 1954 RO decision remains final.
ORDER
As new and material evidence has not been received to reopen
a claim of entitlement to service connection for a low back
disability, the claim is denied.
____________________________________________
John E. Ormond, Jr.
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs